86 S.W. 108
Mo.
1905
BURGESS, P. J. —

This is аn action by Susan P. Breed, as a judgment creditor of the Real Estate Investment Company, wherein she seeks to recover оf the respondent Hobart and others the amount of her judgment against the Real Estate Investment Company, on the ground that the sаid Hobart was one of the incorporators of the said company and subscribed for ten thousand dollars of the stock of the company, and paid only $2,600, leaving $7,400 as the balance due on his subscription to the stock of the said company, which the appellant claims is an asset of the corporation which should be applied to the payment of her judgmеnt. The petition alleges that the Real Estate Investment Company was incorporated by the respondent, Hobart, and nine others, by each subscribing for ten thousand dollars of the stock of the company, and that the same was paid by the incorрorators deeding to the company real estate of the value of $26,000, leaving $7,400 that each of the incorporators was indebted to the company on their stock subscription.

In February, 1893, the Real Estate Investment Company issued two notes secured by deed ‍‌‌‌​​‌​‌​​​​​‌‌‌‌‌‌‌​‌​​‌‌‌​‌​​​​‌​​‌​​​​‌‌​​​​​‍of trust, each for $5,000, which they sold through the brokerage ■firm of Noell & Co. of St. Louis. One note was sold to the appellant, Mrs. Breed. Default was made in the payment of appellant’s note, and foreclosure of the deed of trust was had by sale of the property to Mrs. Breed, and judgment obtained for the surplus and execution was issued, milla bona return made, and this action was brought.

On the twenty-sixth day of July, 1902, judgment was rendered against the respondent, Hobart, and Bigbee as administrator of the estate ‍‌‌‌​​‌​‌​​​​​‌‌‌‌‌‌‌​‌​​‌‌‌​‌​​​​‌​​‌​​​​‌‌​​​​​‍of Ambrose, deceased, in favor of thе appellant Breed. This judgment was rendered by default, the respondent, Hobart, or *144Bigbee, not being present in court at tbe timе tbe judgment was rendered. Afterwards, and at the same term of court, to-wit, tbe May term, 1902, tbe respondent, Hobart, filed a motion in said сourt to set aside tbe judgment so rendered against bim on tbe ground that’ tbe default was occasioned by a misunderstanding between bis аttorneys and tbe attorney for tbe appellant, Mrs. Breed, and be bad no notice of tbe fact that tbe case was sеt for trial and that no record entry was made notifying bim of that fact, although tbe case bad been passed generally, and аlthough it was tbe custom and rule of tbe court under such circumstances to make a record entry notifying the parties as to thе day the case would be tried. This motion was duly verified by the affidavit of the respondent, Hobart, and accompanied with bis answer to the merits, which be asked leave to file. Appellant’s attorney filed a counter affidavit, and the motion of the resрondent, Hobart, was sustained, as well as the motion of Bigbee as administrator of Ambrose. The case was reinstated upon the docket for trial and the respondent, Hobart’s, answer was duly filed. Whereupon the appellant, Mrs. Breed, appealed from the order setting aside the judgment and reinstating the case.

Before tbe judgment was set aside, oral evidence was bеard pro and con by tbe trial court, and tbe court exercised its discretion by setting ‍‌‌‌​​‌​‌​​​​​‌‌‌‌‌‌‌​‌​​‌‌‌​‌​​​​‌​​‌​​​​‌‌​​​​​‍aside tbe judgment by default and permitted tbe rеspondents, Hobart, and Bigbee, as administrator, to file their respective answers.

The first question with which we are confronted is аs to whether or not tbe order appealed from in this case is an order granting a new trial or an order setting aside a judgment by default. If tbe latter, tbe judgment must be affirmed, for setting aside a judgment by default is not a granting of a new trial, within tbe meaning of sections 801 and 806, Rеvised Statutes 1899. And no appeal lies from such an order.

*145The judgment appealed from was clearly by default. Neither defendants nor any of them were in court at the time. ‍‌‌‌​​‌​‌​​​​​‌‌‌‌‌‌‌​‌​​‌‌‌​‌​​​​‌​​‌​​​​‌‌​​​​​‍No inquiry of damages was had or anything which would indicate a trial, hence a new trial could not be granted.

As was said in Crossland v. Admire, 118 Mo. 87: “The statute (sec. 2241, R. S. 1889; sec. 801, R. ,S. 1899), provides that ‘only one new trial shall be allowed to either party,’ with certain designated exceptions, and requires the grounds upon which a new trial may be granted, to be specified of record. We do not think an order setting aside a judgment rendered on default is included within the terms or intent of the statute. There had been no triаl, within the meaning of that term, and a trial must precede a new trial. A trial, under the code, is defined to be ‘the judicial examination of the issues between the parties, whether they be issues of law or of fact.’ [Sec. 2130.] Webster defines the word ‘trial’ as ‘the formal examination of the matter in issue in a cause, before a competent tribunal; the examination, in legal form, of the thе facts in issue in a cause pending before a competent tribunal, for the purpose of determining such issue. ’ Bouvier adopts the definition of the court of Massachusetts (4 Mass. 232): ‘the examination before a competent tribunal according to the laws of the land, of ‍‌‌‌​​‌​‌​​​​​‌‌‌‌‌‌‌​‌​​‌‌‌​‌​​​​‌​​‌​​​​‌‌​​​​​‍the facts put in issue in a cause, for the purpose of determining such issue. ’ ”

In passing upon the case last cited, the St. Louis Court of Appeals, in Schwoerer v. Christophel, 64 Mo. App. 81, said: “A trial is had for the determination of the issues, which can only be made by the pleadings; an inquiry of damages after interlocutory judgment fixing the rights of the parties was not a trial within the meaning of the stаtute, since it involved no issue between the parties; the injection, in the order of the court setting aside the judgment, of the statеment that *146a new trial was granted was unauthorized. There is no distinction in principle between the case before the Supreme Court and the attitude of the case at bar. In the present case the motion was to set aside the judgment on account of a misunderstanding between counsel. It is true that the motion also asked for a new trial, but it did not lose its character as a motion to set aside and vacate a judgment because the mover also asked for a hew trial. Such further request was mere surplusage.”

As no trial had been had, no new trial could be granted; therefore, the order granted was not for a new trial from which the appeal could have been taken, but simply an order setting aside a judgment from which no appeal could have been taken.

The motion to dismiss the appeal is sustained.

All concur.